§223(a)(1)(B), §223(a)(2), §223(d) of the CDA are unconstitutional and unenforceable, except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overbroad. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply.

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The Communications Decency Act was an attempt to protect minors from explicit material on the Internet by criminalizing the knowing transmission of "obscene or indecent" messages to any recipient under 18; and also the knowing sending to a person under 18 of anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs".

In Ginsberg v. New York, the Supreme Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.[1]

In F.C.C. v. Pacifica Foundation, the Supreme Court had upheld the possibility of the FCC delivering administrative sanctions to a radio station for broadcasting George Carlin's monologue on "Filthy Words". In Reno v. ACLU, though, the Supreme Court held that this was not case law justifying the CDA, as the FCC's sanctions were not criminal punishments; and TV and radio broadcasts, "as a matter of history, had 'received the most limited First Amendment protection'…in large part because warnings could not adequately protect the listener from unexpected program content", as opposed to Internet users, who must take "a series of affirmative steps" to access explicit material.

Finally, in Renton v. Playtime Theatres, Inc., the Supreme Court had upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The government argued that the CDA was an attempt to institute "a sort of 'cyberzoning' on the Internet". In Reno v. ACLU, however, the Court ruled that the "time, place, and manner regulation" that Renton had enacted was not similar to the CDA, which was "a content-based blanket restriction on speech".

In a nuanced decision, Justice John Paul Stevens wrote of the differences between Internet communication and previous types of communication that the Court had ruled on. In conclusion, he wrote:

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. (...)

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population...to...only what is fit for children." (footnotes removed)

The rest of the CDA, including the "safe harbor" provision protecting Internet service providers from being liable for the words of others, was not affected by this decision and remains law.

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.

Justice O'Connor, joined by Chief Justice Rehnquist, agreed with the decision "as of 1997", but expressed interest in the idea of creating an "adult zone" on the Internet that was made inaccessible to minors through "gateway technology" that had been investigated by a lower district court. If such technology could be introduced, they wrote, zoning portions of the Internet to prohibit adult content could be as constitutional as such zoning is in the physical world. (See .xxx top-level domain. An alternate proposal promoted by free speech advocates claims that a ".kids" domain would be more feasible and constitutional.)

The two dissented in part, writing they would have invalidated a narrower portion of the two CDA provisions under review.

Rappaport, Kim L. (1997). "In the Wake of Reno v. ACLU: The Continued Struggle in Western Constitutional Democracies with Internet Censorship and Freedom of Speech Online". American University International Law Review13: 765. ISSN1520-460X.